Sovereignty?

So, somewhere in the ambiguous history of northern Turtle Island (Canada) the British Crown became sovereign.   There was no discussion with Indigenous Peoples about this novel idea. It simply took place as an assertion by the Crown and its governments.

A key factor was war-fatigue - when the British, French, and Spanish armies fighting for their monarchs decided to call it quits after seven years of warfare. Their political leaders signed the Treaty of Paris (19 February 1763) giving the costly victory to the English monarch George III. 

In North America, victory meant effective British control of the eastern half of North America (excluding Mexico, as usual).  The Battle of the Plains of Abraham (September 13, 1759) and the surrender to British and allied Indigenous forces by French Governor Pierre de Rigaud de Vaudreuil de Cavagnial, Marquis de Vaudreuil at Montreal on September 8, 1760 ended French rule in New France. The Paris treaty limited France’s interests to some fishing rights and the islands of St. Pierre & Miquelon as a fishing station. Prior to this surrender, the British had negotiated agreements with France’s Indigenous allies.

The Treaty confirmed British supremacy of North America in European terms.  The crowns of Europe had fought over the presumed sovereignty prize and the British had won. The Doctrine of Discovery (1493) had given papal approval for the European crowns to claim “undiscovered” and “unoccupied” lands (terra nullius) – abhorrent and controversial notions seemingly blessed by the Divine through the Pope of the day, Alexander VI, emphasizing the importance and now opportunity to convert more “heathens” to the Christian cause. 

It wasn’t long, however, before these concepts were abrogated as “doctrine’. * The idea, however, had legs and the Seven Years War’s French & Indian (North American) theatre of war was largely fought to determine which “crown” would rule.

Resistance to Sovereignty

But the “inconvenient Indians” complicated what might have been a simple solution. North America had a host of Indigenous Peoples who occupied the spaces with their own languages, cultures, spiritual practices, economies, learned wisdom traditions and governance. These Peoples had fought on the British side or on the French side but now had to relate only to the British crown, specifically George III.

This “Crown” couldn’t afford any more war and certainly didn’t want to wage war with the Indigenous Peoples.  So, coming to terms with them was a priority. But there was another complication:  the settlers.  These migrants had crossed the Atlantic in pursuit of greater freedom to break out of the old norms of European life.  They sought a new society and the enticing “vacant” lands and resources seemingly just waiting to really be “occupied”.   

The residents of the 13 Colonies and those of the former New France (Quebec, etc.) and later those in the new-born Canada (1867) were keen to expand into the vast lands that lay before them.  But their enthusiasm was countered by concern about these visitors occupying and controlling what had long been home and native land for the Indigenous Peoples. 

The Royal Proclamation

To keep the peace and bring order to an increasingly turbulent scene, George issued “The Royal Proclamation” of 1763.

The result was three-fold.  First, it recognized the reality and the validity of Indigenous Peoples land rights and nationhood.  Any land transactions with the Indigenous Peoples were only to be carried out by the Crown.  Colonists were only to buy or obtain lands from the Crown after it had obtained these lands from the indigenous Peoples. Such transactions were matters to be handled only between the governors appointed by the British crown and the Indigenous Peoples as nations.

Second, the effect of the Royal Proclamation was to lay the basis for nation-to-nation treaties as the key to good and peaceful relationships between the Crown and Indigenous Peoples. 

Third, colonial settlers were to confine their land interests to area east of the Appalachian headwaters.  West from there was reserved for Indigenous Peoples only and overseen by the British military – ostensibly to protect westward bound colonists from Indian attacks, and not inconsiderably, to retain the economic benefits of the fur trade. 

Fundamental in this Proclamation was the presumption that this monarch had the authority to determine the overall lay of the lands and its native peoples. While the Crown recognized Indigenous rights, it reserved for itself sovereignty and the authority to determine and acknowledge those rights. 

Indigenous Peoples might occupy the lands, the Crown might “buy” lands and sell to settlers, but the Crown asserted its sovereignty. The Treaties associated with the name “Niagara” (1764, 1781, 1787) confirmed this arrangement sounding eerily like the original understanding the abrogated Doctrine of Discovery.

[The Royal Proclamation's Indigenous rights and provisions were confirmed in Canada's Constitution Act of 1982.]

Revolution

Whatever else George’s proclamation did, it evoked a volcanic reaction in George Washington and other “American” colonists who felt that their ambitions, dreams, and rights were being curtailed by remote British meddling in the opportunities, notwithstanding “Indian” threats, that called them westward.  The Revolutionary War which led to the independence of the 13 Colonies was the colonists challenge against this assertion of Crown authority over the North American territories.  Waging war with the British, the revolutionaries no longer had time for any claims of British sovereignty or the territorial control of Indigenous Peoples. The bloody American Indian Wars were also  not long in coming.

Re-awakening the Doctrine of Discovery

No one was actually fretting about the Doctrine of Discovery at this point. That came later when the Supreme Court of the United States in 1823 reinstated this invalid concept as doctrine to be regarded as authoritative in American common law.  A key point in the Johnson v. McIntosh decision written by Chief Justice John Marshall was that while the original inhabitants' occupancy was acknowledged, their rights to complete sovereignty were diminished on the basis of the original fundamental principle that “discovery gave exclusive title to those who made it”!, i.e. the British Crown.

But the idea inherent in  the Doctrine had effectively wormed its way into the mind-set of European imperialists and was received by settlers.  With British military successes, economic dominance, racist and religious worldviews and local political control, the Doctrine was officially accepted in the United States, but was already implicitly in place in the minds and hearts of dominant Europeans migrating to the “discovered” lands - including those in what remained of British North America, i.e. Canada.

The British Crown was particularly adept at acting chauvinistically as if it had the right to be the supreme colonizing authority with the mandate to determine and “grant” to Indigenous Peoples what lands they might control as their “reserves” and, eventually to define what authority they might have over their own lives. 

Before the end of the 19^th century this presumed Crown authority was claimed by the government of Canada in the Dominion Land Act of 1872 (amended at various time subsequently) and brutally codified in the Indian Act of 1876.

The “cultural genocide” referred to by the Truth & Reconciliation Commission (2015) and the undefined “genocide” Pope Francis acknowledged (2022) became the policy of government.  This was policy rooted in an all too commonly held conviction of the general population and exercised in a host of racist and unjust legislative and regulatory ways that were to result in erasing “the Indian problem”, including full assimilation with white Christian European-based society. 

It failed and is still failing.

So today, when people call for the repudiation of the “Doctrine of Discovery” and of the “terra nullius” concept they are not pointing primarily at documents, but exposing a mind-set and a government structure that has no legal validity. Canada’s nation state legitimacy is undermined by this notion that somehow the British and now the Canadian Crown has legal (if not divine) sovereignty. 

Sovereignty is “earned” either by purchase of territories from a nation (as some were e.g. Treaties of Niagara), or by conquest of nations/peoples (as in U.S.A. Indian Wars), or by the will of peoples choosing nationhood.  Canada has “earned” sovereignty in none of these accepted ways in relation to the Indigenous People of northern Turtle Island.  Canada’s Indigenous Peoples continue to claim Creator-given land rights and sovereignty over their own nationhood, and the right to cultivate and shape their own societal realities.   Ongoing endless litigation to realize these just claims is the costly and wearying result.

Canada's reality is being challenged on the basis of the horrendous results of the Crown's assertion of sovereignty.  The data is clear. Canada’s Indigenous Peoples suffer the consequences of an apartheid culture where the abundance and wealth of the land and seas flow to Settler society and government, while Indigenous People experience the poverty borne of dispossession and racially-based government policy. The statistics revealing this asymmetrical societal injustice are shameful – both in Government of Canada sources and those of the OECD and countless commissioned Canadian reports.

Chief Terry Teegee, regional chief of B.C.’s First Nations interviewed after Pope Francis' 2022 visit, points to the subsequent enslavement and genocide of Indigenous peoples, with wars and disease. “Colonization in many respects equated to the death of Indigenous people, not only physical, but the death of their languages and cultures. So that’s basically the message I conveyed to him,” he said. (Andrea Smith in the 28 Jul 2022 issue of TheTyee.ca).

Getting Beyond the Doctrine and the 1763 Proclamation

What is the way forward for Settler Canadians, for Canada?

Yes, do repudiate the explicit Doctrine of Discovery and concept of terra nullius, but acknowledge as well, repentantly, the implicit reality of these cursed concepts still determining our relations with Indigenous Peoples.

Deepen our understanding of Canada's situation by gathering study groups, learning circles, book groups, etc. that inform and awaken us all to the realities of Canada society.

Then, call on the federal government to bring together representative bodies of both Indigenous and Settler wisdom people with the mandate to explore and envision a new way of being a two-row wampum society – a diversity-based  society where respectful friendship and generous sharing bring peace to both Indigenous lives and to Settler hearts, as well as reparations to the plundered lands and abused lives.  Support actions that aim to share the wealth of the land substantially, e.g. through the 1% Fund for Indigenous Human Development, to remedy and repair the deficiencies and impoverishment Indigenous Peoples have suffered. 

Bring this wisdom together and then appoint a body of 100 diverse Canadians – Indigenous and Settler, women and men, old and young, rich and poor, educated and learning, including representative of all the political parties in Parliament – to give shape to a new constitutional framework with infrastructure and provisions such a society requires to ensure that all the Peoples flourish in peace. 

None of this will happen overnight. But the knowledge that there are representative people mandated to give rise to a new legitimate expression of Canada in all its rich diversity will give people heart for even a protracted birthing process.

A large task awaits us - one that has been waiting for over 700 years ever since Jacques Cartier and John Cabot visited Turtle Island and drove their sword and cross into Canada’s soil to claim it for foreign crowns when the rightful owners, the Indigenous Peoples,  were watching and have continued to watch and wait with grace and patience for a more friendly and just relationships during that whole time. 

The waiting must end and the rapprochement must accelerate – together peacefully but fairly and legitimately.  Canada’s integrity as a justice-based nation and the honour of the Crown are at stake. I long for a new authoritative Proclamation – the expression of the honourable and vibrant hopes and commitments of all Canada’s peoples – Indigenous and Settler.    That would truly make it legitimately  "ROYAL" indeed.

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Notes

*For a carefully researched, scholarly account of these troubling concepts, the work of the Canadian Catholic Conference of Bishops dated March 19,2016 can be commended:  “The Doctrine of Discovery” and “Terra Nullius:  A Catholic Response” at  https://www.cccb.ca/wp-content/uploads/2017/11/catholic-response-to-doctrine-of-discovery-and-tn.pdf. 

+ Footnote 2 in the preceding document.